EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MONONA AVENUE
George E. Guyton
John Rolfsmeyer d/b/a Appliances Unlimited
Case No. 20424
A complaint was filed with the Madison Equal Opportunities Commission (MEOC) on April 3, 1985 alleging discrimination on the basis of race in regard to employment. A supplemental complaint was filed on May 7, 1985 alleging, in addition to what was contained in the April 3 complaint, further allegations of discrimination on the basis of race and/or color.
Said complaint, as supplemented, was investigated by Mary Pierce, an MEOC investigator. An Initial Determination dated June 17, 1985 was issued concluding that, "There is probable cause to believe that the Respondent discriminated against the Complainant because of his race in violation of Sec. 3.23, Madison General Ordinances, the Equal Opportunities Ordinance."
Conciliation failed or was waived. The case was certified to hearing and a hearing was held commencing on January 17, 1986. Atty. Jeff Scott Olson of Julian and Olson, S.C. appeared on behalf of the Complainant who also appeared in person. Atty. James W. Gardner of Lawton and Cates appeared on behalf of the Respondent who also appeared in person. Based on the record, the Examiner enters the following Recommended Decision:
RECOMMENDED FINDINGS OF FACT
RECOMMENDED CONCLUSIONS OF LAW
That this case be and hereby is dismissed.
This case presents a situation where an employee and an employer who had, and still seem to have, a good interpersonal relationship are on opposite sides of an administrative lawsuit.
Guyton, who is black, obtained a job from Rolfsmeyer who runs a business called Appliances Unlimited. Guyton began work on or about November 8, 1984. Guyton performed general labor tasks and was considered an excellent worker when he worked, but had an absenteeism problem despite being extended great latitude and leniency by Rolfsmeyer.
Although Guyton had been verbally warned twice that further absenteeism would result in termination, he was not ultimately terminated until after an alteration that involved a white co-employee, Greg Huntington.
It is essentially Guyton's claim that he was racially harassed by Huntington throughout his employment, that Rolfsmeyer was aware or should have been aware of the racial harassment and that Rolfsmeyer's failure to have previously terminated Huntington for harassment led to the fight which resulted in Guyton's termination (as well as Huntington's).
Even isolated instances of racial remarks or racially motivated harassment can have a detrimental impact on an employee who feels s/he was directly or indirectly the brunt of verbal or other racial harassment. In this case, the Complainant has testified that he was the object of more than isolated or accidental harassment by Huntington. However, the Complainant has failed to show that his employer was liable for the harassment, based on what the employer knew or should have known and the steps the employer took to prevent the harassment.
The essential issues in this case are (a) did racial harassment occur; (b) if so, what did the employer know or what should the employer have known about the racial harassment;l and (c) did the employer fail to take reasonable steps to redress or eliminate the racial harassment?2
Before addressing the legal issues, I will briefly address the credibility of Guyton and Rolfsmeyer. Each had some flaws in his respective testimony. The flaws in Rolfsmeyer's testimony include his warning Guyton for a day of absence, January 2 of 1985, on which Guyton was excused as evidenced by the fact that Rolfsmeyer had that day testified on Guyton's behalf at a child custody proceeding. Also, Rolfsmeyer testified at the child custody proceeding that Guyton had applied for a job without mentioning anything about Guyton having borrowed or having attempted to borrow money. At the present hearing, Rolfsmeyer testified that Guyton first borrowed money from him and that when Guyton returned a second time to borrow money, Rolfsmeyer told him (Guyton) that he (Rolfsmeyer) could not loan any more money to him (Guyton) but that he could offer him (Guyton) a job.
Guyton's credibility problems are by far the more severe, however.
One notable problem with Guyton's testimony includes his description about the altercation with Huntington. Guyton claims Huntington smashed a refrigerator door into his chest to start the fight and that he (Guyton) gave up the pipe wrench willingly to end the fight. The more credible testimony of Hotchkin and Burns, however, is that Guyton initiated the physical confrontation with Huntington and that Guyton did not yield the pipe wrench willingly.
Further, Guyton denies that he afterwards threatened to bring around couple of friends to beat up Huntington if Huntington showed his face on Williamson Street. The more credible testimony of Hotchkin and Burns was that he (Guyton) did make the threat.
Still another problem with Guyton's testimony was his statement that Rolfsmeyer had called him (Guyton) a "nigger" during a telephone conversation. When questioned about the telephone conversation at an earlier deposition, Guyton did not make any mention that Rolfsmeyer had called him a "nigger." Since the alleged racial remark by Rolfsmeyer would have been the only other one that was made to Guyton by someone other than Huntington, it is unlikely that Guyton would have omitted the remark during the earlier deposition. I, therefore, find it likely that Rolfsmeyer never made the remark at all. Also, Guyton testified that he was absent January 8 to 11, 1985 on account of a hemorrhoid problem and that he had seen Dr. Morton in that regard. Yet, Guyton later admitted that he was only guessing when confronted with evidence that he had not seen Dr. Morton until February, 1985 about the hemorrhoids.
Without belaboring the point with other examples, I find that Guyton has some severe credibility problems. Nevertheless, I do believe that he was the victim of some racial harassment by Huntington. An employee's testimony, to the extent that it is credible, may support a finding of racial harassment where the employer has presented no evidence to refute or deny it.3
Had Huntington been a supervisory employee, the employer would have been liable for his conduct.4 However, Huntington was not a supervisor. Consequently, the employer's liability for Huntington's conduct depends on what the employer knew or should have known and whether the employer, based on what the employer knew or should have known, failed to take reasonable steps to redress or eliminate the racial harassment.
A. Did racial harassment occur?
I have given Guyton the benefit of the doubt, despite his credibility problems, and have entered findings that Huntington racially harassed him on number of occasions prior to the fight that led to their discharge: the post Bible-study incident, the stove and dolly incident, the truck incident, the incident witnessed by Smyth where Huntington called Guyton a "damn nigger".
B. What the employer knew or should have known.
Prior to the fight, Rolfsmeyer personally knew that Guyton had complained on two occasions about three separate incidents of racial harassment and that Huntington had denied them.5 There were apparently no co-employees or supervisors who witnessed the three incidents, nor did the Complainant produce any other witnesses to those incidents.
Rolfsmeyer is also imputed to know anything that his supervisors knew or should have known. Thus, Rolfsmeyer should have been aware that Smyth had reported an incident to Dan (Dibbert) that he had heard Huntington call Guyton a "damn nigger." Because Hotchkin knew about it, Rolfsmeyer also should have known of the friction that occurred between Huntington and Leroy Carter, (a black employee who worked for only a single day at Appliances Unlimited), although there is not sufficient evidence to show that Huntington's actions toward Carter were in fact racially motivated.
Other than the one remark witnessed by Smyth, there is no evidence that any other employee witnessed the racially motivated incidents that occurred between Huntington and Guyton. Consequently, Rolfsmeyer primarily had two conflicting stories from two employees.
Rolfsmeyer counseled Huntington on two occasions. While acknowledging that Huntington denied Guyton's allegations, Rolfsmeyer specifically told him (Huntington) that racial harassment would not be tolerated at Appliances Unlimited. In addition, after Guyton's first complaint to Rolfsmeyer, Huntington's and Guyton's job assignments were separated so that they worked apart approximately 90% of the time with Huntington generally working on a different floor or being out of the building. And on February 28, 1985, Rolfsmeyer warned Huntington that he would be terminated if he made any racial slurs or otherwise harassed Guyton.
C. Did the employer fail to take reasonable steps to redress or eliminate the racial harassment?
Based on the information Rolfsmeyer knew or should have known prior to the fight, Rolfsmeyer's actions of separating the employees as much as possible and threatening Huntington with termination were reasonable steps and probably the most severe actions that he could have taken under the circumstances. The employer did not ignore Guyton's complaints; rather, the employer was limited in the action he could take because of the weaknesses of both Guyton's evidence and Guyton's own credibility.
While this Examiner believes some of the Complainant's testimony that racial harassment occurred, the evidence is admittedly skimpy. Guyton has some severe credibility problems with his testimony (discussed previously), and has a witness (Smyth) to a single instance of racially derogatory name calling prior to the fight. The Complainant also raise an innuendo that Huntington may have committed racially motivated harassment against another black employee, Carter, but the Complainant falls far short of showing that Huntington did racially harass Carter. Even if the employer had investigated Guyton's complaints more closely, there is no evidence that the employer would have discovered anything else pertaining to the alleged harassment that he should have known.
In a case where the evidence is slim, such as this one, there is little more that the employer could have done than separate the employees as much possible and make clear to the alleged offender (Huntington) that racial harassment was against the employer's policy and would result in termination. If Guyton had stronger supporting evidence of the racial harassment that the employer knew or should have known, the employer would have been expected to have taken stronger measures against the offender (Huntington).
As for the discharge itself, there is evidence that Huntington called Guyton a "boy" during the heat of argument. But the evidence is also clear that Guyton initiated the physical confrontation that ensued as a result of the verbal argument. While Guyton's frustration and anger at Huntington for accusing him (Guyton) of running over some damaged appliances (for which it was never proved who was responsible) is understandable, the law simply will not tolerate violent means of resolving a dispute even where an individual believes s/he is being racially harassed. In fact, a primary purpose of the anti-discrimination laws is to avoid violent resolution of these disputes.
This is not a case of self-defense. This is a case of verbal argument that escalated into a physical confrontation when the Complainant walked twenty feet across a room to where Huntington was. An altercation ensued, ending only after Guyton picked up a pipe wrench and threatened to kill Huntington (or take his head off) and the pipe wrench had to be forcibly removed from Guyton's unwilling hand. Guyton afterwards also threatened to bring a group of friends to Williamson Street to beat up Huntington.
While, as I have acknowledged, even a single incident of racial harassment may create detrimental and long-lasting frustration for the victim, under no circumstances does the law condone violent confrontation as a method of resolving the dispute. Guyton's recourse would have been to complain about Huntington's having accused him of damaging the appliances and having called him a "boy," and to have asked the employer to impose further discipline on Huntington. If dissatisfied with the employer's response, Guyton could have pursued the matter through legal channels. Guyton instead took the law into his own hands by initiating a physical altercation and did not give the employer a chance to act further.
While I can sympathize with Guyton's frustration, the law will not excuse his conduct in regard to the fight.
In summary, I point out that had Huntington had any supervisory authority over Guyton, the employer would have been liable for Huntington's conduct regardless of whether the employer (Rolfsmeyer) personally knew; Huntington's acts would have been imputed to Rolfsmeyer on an agency theory. Thus, I would have found the employer liable for racial harassment, but not for the discharge because Guyton initiated the physical conflict. However, Huntington was neither Guyton's supervisor nor anyone else's supervisor at Appliances Unlimited.
In the circumstances where co-employee harassment is involved, the proof requirements are more burdensome on the Complainant. The Complainant must not only establish that the harassment occurred, but also that the employer knew or should have known about it. In addition, depending on what the employer knew or should have known, the Complainant must ultimately show that the employer failed to take reasonable steps to prevent the racial harassment from occurring.
In this case, the evidence is that the co-employee offender (Huntington) almost always racially harassed the Complainant when no supervisors or other witnesses were present and the employer was unable to distinguish between the truth of Guyton's complaints and Huntington's denials. Nevertheless, the employer took action to separate the two employees as much as possible, counseled the offender (Huntington) on the anti-harassment policy in the workplace and threatened to terminate him for racial slurs or other harassment of Guyton. The Complainant failed to show that the employer's actions, under the circumstances, were not reasonable and the Complainant specifically failed to show that his discharge was a result of the employer's failure to adequately discipline Huntington for the harassment (based on what the employer knew or should have known).
While the law on harassment could be more effective if it were otherwise, the present status of the law is that employers are not as readily accountable for racial harassment by co-employees as for supervisory employees. And the Complainant has not carried his burden to establish liability on the part of the employer (Rolfsmeyer) in this case. Huntington could have been personally liable, but he was not named as a party in this case.
Signed and dated this 28th day of April, 1986.
EQUAL OPPORTUNITIES COMMISSION
Allen T. Lawent
EOC Hearing Examiner
1EEOC v. Murphy Motor Freight Lines, Inc., 488 F. Supp. 381, 22 FEP 892 (1980).
3Erebia v. Chrysler Plastic Products Corp., 772 F. 2d 1250, 37 EPD par. 35, 317 (CA-6, 1985), cert. den. (U.S. S. Ct. 1986), 39 EPD par. 35, 875.
4Vinson v. Taylor, 753 F. 2d 141, 36 EPD 34, 949 (CA, D of C, 1985), cert. granted by U.S. Sup. Ct. (10/7/85).
5See Recommended Findings of Fact 10 and 15.